Bowne v. Hyde

6 Barb. 392 | N.Y. Sup. Ct. | 1849

By the Court, Edwards, J.

The promissory note on which this suit was brought, was indorsed by the defendant for the accommodation of the maker. The circuit judge before whom the cause was tried, held that the maker was not a competent witness for the defendant, without a release.

Ever since the case of Jones v. Brooke, (4 Taunt. 464,) whenever the question has arisen, it has been held, or assumed as an existing rule, that the party for whose use an accommodation note has been drawn or indorsed, is incompetent as a witness for the party who has lent his name, and liability. This has recently been recognized by high authority in England, as the established rule of ¿he common law. (Lord Lyndhurst, in Burgess v. Cuthill, 6 Carr. & P. 282.) The same rule was recognized in this state in Hubbly v. Brown, (16 John. 70,) and has since been adopted and followed. (1 Greenl. Ev. 401. 2 Id. 203, and authorities cited.) And whether founded upon good reasons or not, we consider it so far established by authority as to be controlling upon us.

The offer made by the defendant’s counsel to execute a release in the name, and as the attorney of the defendant, was not sufficient. Neither would such a release, if it had actually been executed, have rendered the witness competent, as. there was no offer to prove that the counsel had been authorized to execute it.

Motion for new trial denied.